PART II
"America stands for progress in human rights as well as economic affairs, and a strong America requires the assurance of full and equal rights to all its citizens, of any race of any color."
---President John F. Kennedy
Reservation Demographics
America's devastating Indian policies affect more than just Indians
on reservations. Most Americans still believe that reservations are separate and distinct
areas inhabited by individual Indian tribes. This simplistic and erroneous belief fosters
other misconceptions that inhibit resolution of problems faced by reservation residents.
According to the 1990 census, 1,959,234 Indians, Eskimos and Aleuts
live in the United States, but only 437,358 of them (22%) live on reservations. Over three
quarters of those classifying themselves as Indians have already assimilated into the
larger society.
The racial composition of reservations is just as surprising. While
there are 437,358 Indians living on reservations, there are also 370,738 non-Indian
reservation residents - 45.9% of the total. If the large and predominantly Indian Navajo
reservation is excluded from the calculations, non-Indians comprise 55.4% of the
population on the remaining reservations. More non-Indians than Indians reside on
reservations in California, Colorado, Idaho, Michigan, Minnesota, Nebraska, New York,
Oklahoma, Utah, Washington, Wisconsin, and Wyoming.
These numbers do not properly reflect two other important factors
affecting tens of thousands of people. Many individuals classify themselves as
"Indian" even though they may have only a very small percentage of actual Indian
blood. The numbers also do not indicate how many Indians have moved to different
reservations because of jobs, marriages or some other reason. Normally these individuals
are not allowed to participate in local tribal government because they cannot become
members of the tribe that governs the reservation on which they live.
Most of the nearly 400,000 non-Indians or their ancestors came to live
on reservations during the homestead period. However, many current residents own property
that was enveloped as reservation boundaries expanded to include public lands transferred
to a tribe by the federal government. Others found themselves inside reservation
boundaries as a result of questionable court decisions.
Most Americans are unaware of the significance of the historical period
from 1887, - when the Dawes Act and the surplus land Acts opened reservations to
homesteaders, to 1934, - when the Indian Reorganization Act instituted racially segregated
governments on reservations. Based on the Dawes Act, homesteaders purchasing tribal land
expected the entire reservation system to cease to exist within a short period of time. As
was mentioned earlier, congressional testimony for the Dawes Act said, "by the bill
we proposed to break up the reservations." Speaking of the surplus land Acts, the
Supreme Court said in 1984, "Members of Congress voting on the surplus land Acts
believed to a man that within a short time - within a generation at most - the Indian
tribes would enter traditional American society and the reservation system would cease to
exist."
Why would early homesteaders expect less than these Members of
Congress? As the reservation systems went out of existence, homesteaders expected Indians
to participate in and be subject to local government, and Indians and their lands to
contribute to local tax revenues. Based on these laws and expectations, hundreds of
thousands of settlers moved to reservation areas and purchased tribal land. Early
homesteaders couldn't have anticipated or imagined that they or their descendants would
ever be subject to tribal authority.
1934 Reversal Traps Non-Indians
Since 1934, tribal power and influence have increased. Over the past
few decades, tribes have demanded, and in many cases have "legally" obtained,
the right to tax and regulate non-members on reservations.
For obvious reasons, tribes are not willing to grant non-member
residents of the reservation either the right to vote, or the right to participate in
making, enforcing, prosecuting or judging tribal law. Despite their presence on
reservations for several generations, non-Indians are generally prohibited from any
involvement at all in the tribal system(except as a party to a lawsuit in tribal court).
One tribal representative underscored the continuing inequity of the
current situation when he testified at a recent state legislative hearing. The tribal
spokesman defiantly reported to the legislators that, "We will never allow white
people to vote." The Chairman of the same tribe is quoted as saying:
"Let them talk about taxation without representation. We're not a state. We're a separate nation, and the only way you can be represented in it is to be a member of the tribe. And they can't do that. They're not Indians. These folks are trespassers. They are within reservation boundaries, and they will follow reservation law. They've now had one hundred years with no tribal authority over them out here. Well that's over."
Not surprisingly, non-members who live or work on Indian reservations are frequently
subjected to blatant discrimination and actions that anywhere else in the country would be
considered unconstitutional.
The profound impact of the 1934 reversal on non-tribal members was
never adequately considered by the government of the United States. Constitutional
protections that had existed for a century and a half have slowly been abolished. If such
an attempt was made today to deprive a whole class of U.S. citizens of their
constitutional rights, the nation would be rightfully outraged. The fact that almost four
hundred thousand Americans are suffering from just such an abomination initiated sixty-two
years ago appears to be inconsequential to today's politicians and bureaucrats.
Taxation Without Representation Is Still Tyranny
Governmental powers exercised by tribes have steadily expanded in
recent years, to the point where a number of tribes have attempted to tax non-members'
property and businesses. History has proven time and again that the power to tax is the
power to destroy, especially if that power is both discriminatory and unrestrained by the
power of the ballot.
Some influential tribal leaders have expressed their intention to use
these powers to drive non-Indians off reservations. In fact, this is already occurring.
This trend will undoubtedly continue, since federal policy presumably applies equally to
all tribes, and policies that receive implicit government approval on one reservation can
be duplicated on all others.
This injustice arises from tribal efforts to establish sovereignty, not
just over themselves, but also over non-Indians. Excerpts from a news article published in
the Rapid City (SD) Journal on May 16, 1989, indicate the concerted effort by tribes to
expand their powers through taxation:
"TRIBES TOLD TO BROADEN TAXATION POWERS TO PROTECT SOVEREIGNTY
"Bloomington, Minn. (AP) - American Indian tribes must launch a legal offensive to
avoid a threat to their sovereignty by expanding government powers such as taxation,
representatives from 12 tribes around the country have been told. 'If you don't document
sovereignty and take jurisdiction, somebody else will,' said Robert Pirtle of Pirtle,
Morisset, Schlosser & Ayer of Seattle and Washington DC. 'Use it or lose it--it's that
easy.'
"William Edmo, grants officer with the Shoshone-Bannock tribe of
Idaho, attended the workshop to learn how to broaden tribal taxation powers.
"His tribe has established a taxing commission and soon will begin
taxing sales of ore from its phosphorus mine -- pre-empting the state which now taxes the
tribal ore.
"The money will be used for a school, roads and other services
offered to Indians and non-Indians on the reservation. 'Once those services are in place
the tribe can tax property and income of residents,' he said. 'Tax revenues are much
needed for services and economic development,' he said.
"'We want to do it in a logical sequence--a planned approach' Edmo
said. 'We don't want to overtax, or ruin our business, or provide inadequate services. But
we have to do it, exercise our tribal sovereignty.'
"'If you are weak the state and federal government will run over
you,' said Red Lake Chairman Roger Jourdain.
"'Tribes have the power to tax income, property, sales,
real estate and construction on reservations,' Pirtle said. 'But they must wrest
it from other taxing entities, which illegally assumed that power over tribes,' he
said."[emphasis added]
Tribal ordinances of the Standing Rock Indian Reservation in South Dakota include the following provision, which clearly discriminates against non-Indians:
"16-101. Tax.
All persons, except tribal members of the Standing Rock Indian Tribe, shall pay taxes for the privilege of doing business on the Standing Rock Indian Reservation by leasing or permitting of Indian lands as follows:
"($.20) Per acre on grazing land, including $5.00 per head for Non-Indian owned livestock grazing on allocated Range Units.
"($.50) Per acre on Agriculture (crop) lands."
This tax, implemented by members who have voting privileges and who will receive the
benefits of the collected tax, is levied exclusively on non-members who can't vote and who
receive no benefits from the tax revenues. Such blatant discrimination would not be
tolerated anywhere else in America.
If such arbitrary and capricious tax ordinances go unchallenged, their
degree of inequity is limitless and their expansion is inevitable. It is interesting to
note the similarity between the Standing Rock tax on non-Indians' agricultural activities
and the British tax on colonists' tea imports just prior to the American Revolution.
Domination Through Business Licenses
The Rosebud Sioux Tribe has a business licensing requirement that is
very similar to those enacted or proposed by other tribes. Appendix B includes quotes from
the Rosebud ordinance which reveals the tribe's continuing attempts to dominate the
non-Indian business owners operating on private property that happens to be inside the
boundaries of the reservation.
In essence, the ordinance is a declaration by the tribe that it
possesses regulatory control over non-Indians. Under the guise of a "legal and
legitimate" governmental rule, it coerces business owners to subject themselves to
all manner of tribal control. The tribe's declaration of de facto jurisdiction over
non-Indians is a direct challenge to a number of Supreme Court rulings.
The gross inequities of tribal ordinances such as this are not readily
apparent to the uninformed. Non-Indians are sometimes forced to pay tribal taxes and state
and county taxes. Dual taxation puts non-Indian businesses at a distinct competitive
disadvantage. Tribal ordinances that create hiring and contracting preferences not only
impinge on a business owner's right to determine what is best for his business, they are
also patently discriminatory. Taxation, licensing and regulation without representation or
Constitutional protection force non-Indians into a very uncertain future on reservations.
In contrast, Indians as citizens, can rightly participate in city,
county, state and federal governments. Their alternating status as sovereigns and wards,
however, may mean that they do not have to pay the taxes or obey the laws they enact,
enforce or judge. These inequities can create serious problems and animosities, especially
in local jurisdictions such as school districts, communities and counties.
Lots in Parker, Arizona were auctioned by the federal government in
1908 during the assimilation period. The majority were purchased by non-Indians and today
Parker (population 2500) is ninety percent non-Indian. Recently a federal judge decided
that Parker was still in a reservation and couldn't enforce its building code against a
tribal member. Parker's Mayor, Sam Davis, provided the following testimony before the
Senate's Sept. 1996 hearing on tribal sovereign immunity:
"[T]he courts decision leaves residents of Parker subject to a complicated and
confusing combination of state, tribal and Federal jurisdiction. There are numerous
unanswered questions regarding whether and how the tribes will assert jurisdiction in
Parker in such areas as taxation, zoning, business licensing, liquor sales, and health and
safety regulation. The most serious and urgent problems relate to law enforcement. A
particular law enforcement officer's authority in a given situation on an Indian
reservation depends upon the identities of the suspect(s) and victim(s). The varying
degrees of authority between Federal, state, county, town and tribal officers can lead to
confusion, delay and even physical harm - to both citizens and police officers.
"Last month, for example, a tribal member driving a pickup truck
repeatedly rammed, at high speeds, a squad car occupied by the Town's chief of police.
Because the suspect is an Indian, the police chief and other Parker police officers had no
authority as police officers to take any law enforcement action in response to the
suspects unprovoked attack. They could only stand by as the suspect threatened the chief's
life, damaged property and fled from the scene. This attack was only the latest in a
series of recent incidents in which tribal members have assaulted Parker police officers.
"The existing situation is very frustrating for town police
officers. Our officers were trained to enforce the law fairly and uniformly for the
benefit of the entire community, without regard to race or creed. Now they are being
required to discriminate on the basis of race, refraining from enforcing the law in any
situation involving an Indian. Not surprisingly, the town is finding it increasingly
difficult to retain existing members of its police force and to recruit additional
officers."
Ninety percent of the residents of Parker - like thousands of others - have just been
put under a legal jurisdiction that excludes them from participation because of their race
and ancestry. What do you think just happened to their quality of life and property
values? If you wanted to retire or start a small business, would you consider moving to
Parker? What would you expect this situation to do for this community's race relations?
Would you like to see your children raise your grandchildren there?
Americans have traditionally understood the implications of government
without representation. Samuel Adams said, "[I]f the public are bound to yield
obedience to [policies] to which they cannot give their approbation, they are slaves to
those who make such [policies] and enforce them." Just recently, Judge Diarmuid
O'Scannlain, speaking for a majority of the ninth federal circuit court, upheld
California's Proposition 209. He quoted a 1943 precedent that said, "Distinctions
between citizens solely because of their ancestry are odious to a free people whose
institutions are founded upon the doctrine of equality." Why are these principles
largely ignored on reservations?
The economic outlook in many rural areas is already bleak. Add these
extra problems, and it is devastating. Not only are these problems destroying most chances
for new economic development, they are often destroying the limited economy that is
presently in place. Most businesses that are located on reservations are sold at a
substantial discount - if they can be sold at all.
Clouded Titles, Clouded Futures
These problems are putting a slowly tightening legal noose around
the necks of non-Indians on reservations. They are constantly confronted with
discrimination and other reservation problems, which appear to be having a dramatic impact
on their behavior and choices.
While the total number of Indians and non-Indians on many reservations
is about the same, there are often dramatic differences between the two groups. The
average age of Indians is very young, frequently under twenty. The average age of
non-Indians on reservations is much older. The average Indian population is growing and
just entering its years of peak fertility while the average non-Indian population is often
declining and past their years of peak fertility (see Appendix C). Many non-Indians are
encouraging their children to leave their homes and communities to avoid these reservation
problems.
Just like their Indian neighbors, hundreds of thousands of non-Indians
are also seeing their hopes for social and economic improvement crushed by federal Indian
policies. Many thousands of non-Indians are being driven from their homes, lands and
businesses just as Indians were forced from theirs over a century ago. Federal Indian
policy is patiently cleansing reservations of non-Indians. This country is engaged in a
quiet, legal, bloodless, politically-correct form of ethnic cleansing.
The implications for the future are enormous. It appears reservations
will become increasingly segregated and racially isolated. We are moving toward an
Apartheid system on reservations reminiscent of the black homelands - with the inherent
oppression and economic disadvantages, - which we correctly condemned in South Africa.
"It is the habit of every aggressor nation to claim that it is acting on the defensive."---Jawaharlal Nehru
Claims for Past Transgressions
Indian policy problems are not restricted to the hundreds of
thousands of Indians and non-Indians that live on reservations. They also affect millions
of others that live close to reservations.
It appears that Congress, the federal bureaucracy and federal courts
are attempting to solve reservation problems by transferring huge quantities of
off-reservation natural resources to tribal control. Some of these resources include
hunting and fishing rights, water rights, and land claims often involving valuable
agricultural, recreational, timber and mineral rights.
The federal government has reserved for itself the primary, and
generally exclusive, role of negotiating with Indian tribes. In 1946 the federal
government established the Indian Claims Commission for the purpose of judging and
compensating Indian tribes for any unfair dealings they had experienced in their exchanges
with the federal government.
Indian tribes were invited to submit their claims to this Commission.
The Commission was expected to function for a limited number of years and to settle all
the valid historical claims that tribes submitted. Any proven claims of damages or
mistreatment were paid from tax revenues.
Congress expected the Commission to process and finally to settle all
the legitimate historical claims of mistreatment of Indian tribes by the federal
government. The life of the Commission was extended several times until it was abolished
in 1978.
As an ultimate solution to the question of tribal claims, the
Commission was a complete failure. The process taught both tribes and their lawyers that
great wealth could be obtained through continually-expanding claims of injustice,
mistreatment and lost land and rights.
Once the Indian Claims Commission ceased to exist, the continuing
claims have been filed in federal courts against individuals, groups, states and various
federal agencies. Instead of defending its original negotiating position, the federal
government, in its role as trustee for Indian tribes, has actually joined with tribes on
many of the claims.
This shift has transferred the legal and political costs of defending
against these claims from the federal government to individuals, associations, states and
various other agencies. If the claims are ultimately successful, individuals almost always
suffer significant losses, and they seldom receive any compensation for their losses from
the federal government.
Returning America to the Tribes
Based upon new legal arguments, tribes have been granted new hunting
and fishing rights in extensive areas that are not on reservations. Wisconsin is a prime
example.
One-half of the hunting and fishing in the northern third of Wisconsin
has been turned over to tribes. Excellent sport fishing has been devastated by commercial
gillnetting. "Bag limits" for sport fishing have been dramatically reduced.
Since sport fishing contributes significantly more to local economies than commercial
fishing, this transfer of natural resources has destroyed the economy in whole sections of
the state. Restaurants, motels, guide services, sport shops, and whole communities, along
with their tax bases, have been devastated.
Similar claims have been brought by tribes in Michigan, Minnesota,
Washington, and other states. Most of the western United States could eventually be
affected by similar transfers.
Potential Indian claims to water rights may exceed 45 million acre-feet
per year, with a market value between $20 billion and $50 billion. Water rights that are
transferred to tribes reduce or destroy the value of rights held by current users. Many of
these water transfers involve a transfer to significantly less efficient production, which
also negatively impacts the economies of whole areas.
Claims for Land Previously Sold
Tribal governments also claim ownership of many parcels and large
tracts of land that are in private, state or federal ownership, such as National Forest or
Public Domain status. The basis for tribal claims can be as intricate as interpretations
of treaties reached between the colonists and Indian tribes in the northeast, or treaties
or agreements between the Mexican government and Indian tribes in the southwest.
Many land claims are directed at high value farm or ranch land (the
Dakotas, Montana, Nebraska, and Iowa, for instance), and for lands of high mineral values
(New Mexico), or lands with high timber or recreational value. Tribes may claim either
public or private land.
Indian tribes claim up to 80 percent of the National Forests in New
Mexico. Tribes are also claiming the Black Hills and other federal land in South Dakota.
Significant claims of National Forest or other government-owned land exist in other states
as well. Since about two-thirds of the western United States is federal land, the impact
of these claims is enormous.
Claims against private land can impact one individual or thousands. The
individuals are often tribal or non-tribal land owners. Many of the parcels claimed by
tribes have been in private status for three or more generations. These claims often
involve lengthy and expensive court battles, cloud titles and result in the owners being
unable to mortgage or sell their property.
Who Picks Up the Tab?
When Congress set up the Indian Claims Commission, claims were paid
in money funded by the general taxpayer. The cost of modern Indian claims could
potentially reach hundreds of billions of dollars. These costs are currently falling
primarily on rural reservation residents and neighbors that are economically
disadvantaged.
There is no government compensation for the sportsman that loses
hunting and fishing rights, or the rural businessman that depends on sport and
recreational business, or the farmer that loses water rights, or the landowner that has to
defend the title to his land.
The federal government has been content to allow some of the major
costs of its current Indian policy to be born by isolated individuals and groups that lack
the legal and political capability to defend themselves. These claims and transfers lead
to inevitable distrust, conflicts and animosities between Indians and their neighbors.
"America is much more than a geographical fact. It is a political and moral fact -- the first community in which men set out in principle to institutionalize freedom, responsible government, and human equality." --- Adlai Stevenson
Modern Slavery?
At the beginning of this paper it was mentioned that Indian tribes were
originally treated like foreign nations, with a significant difference. That difference
has dominated Indian policy throughout this country's history. Indian tribes lived in
territory that had been claimed for the kings of England, France, and Spain; and later the
colonies, states and federal government.
One of the easiest ways to understand reservations is to understand the
power of Congress over territory. Article IV, Section 3 of the Constitution says,
"The Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory and other Property belonging to the United States . .
. ." While this power over territory was almost unlimited, it was intended to be
temporary. The power to dispose was the first and most important power of Congress
regarding territories.
This explains why it was so important to territories that they become
states. It also explains the 1831 Supreme Court decision in which Chief Justice John
Marshall called tribes "domestic dependent nations." Marshall, in referring to
Indians, said "They occupy a territory to which we assert a title independent of
their will . . . Meanwhile they are in a state of pupilage. Their relation to the United
States resembles that of a ward to his guardian."
One of the best-known uses of Congress's territorial power occurred in
the South after the Civil War. After winning the war, the North put the South back into
territorial status and forced them to reenter the Union as states. This approach gave the
North essentially unlimited power in the South and was called Reconstruction.
A special agency of the federal government, known as the Freedman's
Bureau, was dedicated to helping freed slaves enter American society. While many of the
goals, programs, and actions of this period were commendable and important, nevertheless,
the humiliation, frustration, and anger these policies kindled continue to be felt in the
South to this day.
Reconstruction was very similar to the modern legal status of Indian
reservations. Indian lands were "reserved" in territorial status and have ended
up becoming permanent reservations. The concept of the Freedman's Bureau is similar to the
Bureau of Indian Affairs (BIA).
An understanding of the territorial status of reservations reveals a
number of things. For example, it defines the extent of tribes' "sovereignty."
While tribal sovereignty is an important issue at the local level, tribes have only as
much "sovereignty" as the federal government grants them and not a bit more.
Sovereignty didn't keep Indians from being drafted for World War II and the Vietnam War.
Nor does it free tribes from federal ownership and administration of "tribal"
land, approval of tribal actions, control over inheritances and administration of
reservation programs. As Senator Inouye noted, " this is a strange kind of
sovereignty." In fact, it is not sovereignty at all, but only a charade. Compton's
Interactive Encyclopedia correctly explains the legal status of tribes:
"The United States Congress has complete authority over Indian affairs. It can disband the Indian tribes as it did under the Indian General Allotment[Dawes] Act of 1887 . . . or it can permit them to organize as it did under the Indian Reorganization Act of 1934. Congress can overrule court decisions dealing with Indian tribes."
With this "complete authority," Congress also has a complete responsibility.
Generally, tribal "sovereignty" benefits only a few tribal
government leaders and their political allies, while it denies the rights and freedoms of
most Indians. As Minnesota Appeals Court Judge R. A. (Jim) Randall has noted:
"It is not known to all reading this opinion that the following
list of state and federal constitutional guarantees and rights are not in place for
Minnesota Indians domiciled on a reservation: There is no guarantee that the Minnesota
Constitution, the United States Constitution and its precious Bill of Rights will control.
There are no guarantees that Civil Rights Acts, federal or state legislation against age
discrimination, gender discrimination, etc. will be honored. There are no guarantees of
the Veteran's Preference Act, no civil service classification to protect tribal government
employees, no guarantees of OSHA, no guarantees of the Americans with Disabilities Act
(1990), no guarantees of the right to unionize, no right to Minnesota's teacher tenure
laws, no right to the benefit of federal and state "whistleblower" statutes, no
guarantees against blatant nepotism, no guarantees of a fair and orderly process
concerning access to reservation housing, and no freedom of the press and no freedom of
speech.
"In other words, all the basic human rights we take for granted,
that allow us to live in dignity with our neighbors, are not guaranteed on Indian
reservations under the present version of 'sovereignty.'"
In contrast to sovereignty, the ward/ guardian/trust relationship
between the federal government and tribes is very real. Almost every aspect of reservation
life for Indians is influenced by this relationship. It forces them into what is
oftentimes a dependent, humiliating and frustrating existence. The meaning of the cynical
comment, "We're from the government and we're here to help you" was never more
appropriate. Federal aid and public statements that acknowledge "sovereignty"
can be seen as special favors granted primarily to tribal leadership to obtain their
acquiescence to this continuing dependent status.
Indian policy can be compared to a permanent form of Reconstruction. It
is based on the government's temporary constitutional power to regulate territory. To
permanently subject reservations to this dependency is a gross form of discrimination - a
discrimination that has devastated America's reservations.
Every social issue has many human faces. Represented in the dismal
statistics that describe the economic and social standards of living on reservations are
the lives of real people.